(Morales continued)
1
BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALIFORNIA
In the Matter of the Appeal by
HERNANDO MORALES
From dismissal from the position ofSenior Materials and Research Engineerwith the Department of Transportation atLos Angeles
)))))))))
SPB Case No. 97-2744
BOARD DECISION (Precedential)
NO. 98-07
August 4, 1998
APPEARANCES: Dennis F. Moss, attorney, on behalf of appellant, Hernando Morales;Michael F. Yoshiba, attorney, Department of Transportation on behalf of respondent,Department of Transportation.
BEFORE: Florence Bos, President; Richard Carpenter, Vice President; Ron Alvarado,James Strock and Lorrie Ward, Members.
DECISION
In this decision, the Board adopts the attached ALJ’s findings of fact and
determination of issues with the exception of the discussion of the “Skelly Issue” at page
17, as discussed herein.
BACKGROUND
Procedural Summary
Appellant was dismissed from his position of Senior Materials and Research Engineer
with the Department of Transportation. After a hearing, the ALJ issued a proposed
decision modifying the penalty to a demotion to the position of Associate Materials and
Research Engineer. The ALJ rejected, however, appellant’s contention that the
Department violated his due process rights as set forth in Skelly v. State
(Morales continued)
2
Personnel Board,1 by failing to provide appellant, at the time he was served with notice
of the adverse action, with photos and a report. The ALJ concluded that appellant failed
to establish that the person who made the ultimate decision to terminate appellant relied
on those materials to terminate appellant. The Board rejected the ALJ’s Proposed
Decision to consider the issue of whether appellant’s Skelly rights were violated.
Factual Summary
The only relevant facts in deciding the Skelly issue in this case are that: (1) James
Roberts, Director Engineering Services Center, approved and “signed off” on appellant’s
adverse action; (2) Roberts was shown photos and a report on the Elysian Viaduct
project; and (3) Appellant was not provided with these materials upon service of the
notice of adverse action.2
DISCUSSION
In Skelly, the California Supreme Court set forth certain notice requirements that a public
employer must fulfill to satisfy an employee's pre-removal procedural due process rights:
As a minimum, these preremoval safeguards must include notice of theproposed action, the reasons therefor, a copy of the charges and
1 (1975) 15 Cal.3d 194.2 Although given an opportunity to do so, neither party disputed these findings by the ALJ, nor did anyparty request that the Board order a transcript to review the evidence in support of these findings.Accordingly, the Board adopts these factual findings as its own.
(Morales continued)
4
the allegations against the appellant, the adverse action was not “based” upon the
report, and thus the department was not obligated to disclose the report to the appellant
under Skelly. The Board disagreed, concluding that the report was relevant to the
appellant's ability to convince the Skelly officer to modify or revoke the adverse action.
Similar considerations apply in this case. Unlike in G , Sharp-Johnson, K
and G , the materials in question were actually provided to the individual who made
the ultimate decision to take adverse action. As in Karen Johnson, regardless of
whether these materials actually corroborated the Department’s allegations, they were
relevant to appellant’s ability to adequately present his case to the Skelly officer. In
determining whether an appellant has met his or her burden of establishing what
materials were “relied upon” by the ultimate decision maker, we will not delve into the
decision maker’s subjective thought processes to evaluate what materials actually
convinced the decision maker to take the adverse action.7 It is sufficient that appellant
established that the documents were actually provided to the decision maker in
connection with the adverse action.
CONCLUSION
The Board adopts the ALJ’s determination modifying the penalty imposed by the
Department for the reasons stated in the attached Proposed Decision. The Board also
concludes, however, that the Department violated appellant’s Skelly rights by failing to
7 The Board does not consider the declaration submitted by the Department in support of its argument onrehearing before the Board, as the Department has not established good cause for reopening the record.
(Morales continued)
5
provide him with a copy of the photos and report of the Elysian Viaduct project at the
time of service of the notice of adverse action.
Given the Board’s reduction of the penalty, appellant would generally be entitled
under Government Code section 19584 to all back pay and benefits he would have
accrued had he been demoted rather than dismissed. This remedy under section 19584,
however, is largely subsumed in the remedy for the Skelly violation. Because the
discipline was procedurally invalid, due to the Skelly violation, appellant is entitled to an
award of back pay and benefits from the date of the dismissal to the date the Board files its
decision.8 Thus, appellant’s demotion only becomes effective as of the date the Board
files its decision, and appellant is entitled to an award of all back pay and benefits that he
would have accrued had he not been dismissed prior to that date. Appellant is also
entitled to back pay as an Associate Materials and Research Engineer from the date of
this decision to the date of his reinstatement.
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, it is hereby ORDERED that:
1. The attached Proposed Decision modifying the dismissal of Hernando
Morales from the position of Senior Materials and Research Engineer to a
demotion to the position of Associate Materials and Research Engineer is
hereby adopted, with the exception of the discussion of the “Skelly Issue” at
page 17, and the effective date of the discipline;
8 Barber v. State Personnel Board (1976) 18 Cal.3d 395, 403.
(Morales continued)
6
2. The effective date of the demotion of Hernando Morales from the position of
Senior Materials and Research Engineer to the position of Associate
Materials and Research Engineer shall be the date the Board files this
decision;
3. The Department shall pay to Hernando Morales all back pay and benefits, if
any, that would have accrued to him had he not been dismissed from the
position of Senior Materials and Research Engineer for the period July 22, 1997
to the date the Board files this decision;
4. The Department shall reinstate Hernando Morales to the position of Associate
Materials and Research Engineer effective the date the Board files this decision,
and shall pay him all back pay and benefits, if any, that would have accrued to
him in that position from the date of this decision until he is reinstated;
5. This matter is hereby referred to the Chief Administrative Law Judge and shall
be set for hearing on written request of either party in the event the parties
are unable to agree as to the salary and benefits due appellant;
6. This decision is certified for publication as a Precedential Decision.
(Government Code § 19582.5)
STATE PERSONNEL BOARD
Florence Bos, PresidentRichard Carpenter, Vice President
Ron Alvarado, MemberJames Strock, MemberLorrie Ward, Member
* * * * *
(Morales continued)
7
I hereby certify that the State Personnel Board made and adopted the foregoing
Decision and Order at its meeting on August 4, 1998.
_____________________Walter VaughnExecutive OfficerState Personnel Board
[morales-dec.doc
(Morales continued)
BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALIFORNIA
In the Matter of the Appeal by
HERNANDO MORALES
From dismissal from the position ofSenior Materials and ResearchEngineer with the Department ofTransportation at Los Angeles
Case No. 97-2744
PROPOSED DECISION
This matter came on regularly for hearing before
Susan G. Kleinman, Administrative Law Judge, State Personnel
Board on August 27 and November 24 and 25, 1997, at Los Angeles,
California.
Appellant, Hernando Morales , was present and was
represented by Dennis F. Moss, Attorney.
Respondent was represented by Michael F. Yoshiba, Attorney,
Department of Transportation.
Evidence having been received and duly considered, the
Administrative Law Judge makes the following findings of fact
and Proposed Decision:
Jurisdiction
I
The above dismissal effective July 22, 1997, and
appellant’s appeal therefrom, comply with the procedural
requirements of the State Civil Service Act.
(Morales continued)
2
Work History
II
Appellant had been employed as a Senior Maintenance and
Research Engineer with the Department of Transportation
(Caltrans) since August 23, 1993. He has no prior adverse
actions.
Allegations
III
As cause for the dismissal, it is alleged that appellant
failed to arrange for the proper inspection of casting girders
during the week of December 29, 1994 through January 6, 1995,
that appellant issued a memorandum instructing a subordinate
employee to issue lot tags to a contractor indicating Caltrans’
approval of their work without making the inspections needed to
do so, that appellant failed to monitor the work of a
subordinate inspector at the Elysian Viaduct Project who
approved numerous welds which were ultimately found defective at
a cost of hundreds of thousands of dollars, and that appellant
failed to monitor the seismic retrofitting for two projects
which were found not to conform with standards specifications
and/or contract plans. It is alleged that this conduct violated
Government Code section 19572, subdivisions (b) incompetency,
(c) inefficiency, (d) inexcusable neglect of duty,
(Morales continued)
3
(f) dishonesty, and (t) other failure of good behavior either
during or outside of duty hours which is of such a nature that
it causes discredit to the appointing authority or appellant’s
employment.
Background
IV
Appellant was assigned as the supervisor for the Southern
California Materials Engineering and Testing Services Laboratory
(METS) for Caltrans at Los Angeles. METS is responsible for
conducting inspections of various materials used to construct
roadways and bridges, including the inspection of welding for
these projects.
The Laboratory’s territory extended from San Luis Obispo to
Orange County. When hired, appellant had 11 inspectors,1 three
engineers, one laboratory manager and clericals. There was a
manpower shortage during the period of appellant’s employment.
Findings
Inspection of Casting Girders December 29, 1994 through
January 6, 1995
V
Assistant Steel Inspector Richard Suydan (Suydan) testified
that he had been assigned the responsibility of inspecting the
1 During a brief period following the 1994 Northridge Earthquake the number ofinspectors assigned increased from 12 to 15.
(Morales continued)
4
casting of girders, contract 07-119104, with Rockwin
Corporation at Perris, California.2 These girders were to be
used as the main structure for California bridges. Appellant
was Suydan’s supervisor.
From December 29, 1994 through January 6, 1995, Suydan was
assigned other projects as a result of the manpower shortage.
Appellant agreed to take over the Rockwin assignment in Suydan’s
absence. According to Suydan, Rockwin expected to see appellant
during the week of December 29, 1994 through January 6, 1995.
On December 29, 1994, Suydan introduced appellant to the
principles at Rockwin. Suydan and appellant then inspected the
pre-stressing of the forms for the girders. Thereafter, Suydan
left for his other projects.
VI
Appellant admitted that he did not make any inspections of
the girders at Rockwin after December 29, 1994. He testified
that after Suydan left, appellant was informed that Rockwin
would not be proceeding with the fabrication process during that
week because Caltrans employees were on vacation, Monday,
January 2, 1995. Appellant arranged for Rockwin to call him
2 Perris is approximately 30 miles from the Los Angeles METS Laboratory.
(Morales continued)
5
when the fabrication was resumed. Telephone notification was
not unusual in these outlying areas.
Appellant had attended meetings in Sacramento on
January 5 and 6, 1995, and did not receive any calls from
Rockwin. He was prepared to send another inspector if
necessary.
VII
Appellant further testified that his supervisor, Richard
Crozier (Crozier), Chief of the Office of Structural Materials,
directed the inspectors to perform only random spot checks of
the manufacturing process. According to appellant, viewing the
initial pre-stressing of the forms on December 29, 1994 together
with inspections after Suydan’s return, satisfied that
requirement.3 He further testified that the December 29, 1994
through January 6, 1995 inspection involved two girders out of
18 to be fabricated. There were 16 more girders to be “spot
checked,” which would satisfy Crozier’s policy.
3.There was a “hardness” test to be performed sometime after January 6, 1995.
(Morales continued)
6
VIII
Suydan, together with Assistant Steel Inspector
(specialist) Steven Ellis (Ellis), called on behalf of
respondent, each confirmed that Caltrans’ policy only required a
random spot check of the fabrication process. According to
Suydan, Crozier told him to release girders that were not
inspected.
Both Ellis and Suydan testified that this procedure of
random inspection seriously concerned them. Key fabrication
processes of every girder should be inspected. The girders are
used to support the road deck that traffic drives over
(bridges). Ellis asked for overtime to complete the process.
Crozier denied it and indicated that the “inspectors should do
the best they could under the circumstances.” The inspectors
can observe “some processes with some girders, other processes
with other girders.”
IX
Appellant testified that he made numerous requests to hire
more inspectors and had relayed his inspectors’ concerns
regarding only random spot inspections.
Appellant did not receive notice of any malfeasance with
regards to his inspection of the girders for the week of
December 29, 1994 through January 6, 1995, until he received the
notice of adverse action on or about June 13, 1997.
(Morales continued)
7
X
While appellant did not appear at Rockwin after
December 29, 1994, testimony that he was not required to be
present during each step of the fabrication process is believed.
Appellant adhered to the policy of spot checking (corroborated
by Suydan and Ellis) despite evidence that the inspectors were
seriously concerned with this limited review. There were 16
more girders to be inspected, and a hardness test to be
conducted after Suydan’s return. Assuming Rockwin expected
appellant, the integrity of the random spot check was
maintained.4
The evidence established that to do a proper job, appellant
as well as all inspectors, should inspect each key step of
fabrication process. Nonetheless, Caltrans’ policy only called
for random spot inspections, as such, there is no cause for
discipline.
Memorandum to Subordinate to issue lot tags
XI
Appellant admitted that he prepared a memorandum to his
subordinate employee Assistant Steel Inspector Gary Hiles
(Hiles) suggesting a way to expedite the inspection process on
4 In view of the finding, it is unnecessary to determine whether Rockwinceased production and failed to call when production resumed.
(Morales continued)
8
the Franklyn Steel Project in October 1995. The memorandum
authorized the manufacturer to pick up their own samples of
welded hoops and deliver them to the lab, and that the inspector
was not required to be present during the testing. This was a
draft memorandum.5
XII
Appellant testified that he had received a call from
Franklyn Steel indicating that they were ready to produce over
60,000 hoops (welding rebars used to reinforce steel). These
5 The memorandum stated the following:
Memorandum DraftDate: 10/25/95
To: Gary HinesFrom: Department of TransportationSubject: Handling of Inspection of Welded Hoops
Starting on October 23, 1995, Franklyn Steel has been authorized to pick uptheir samples of welded hoops and send them to the testing lab. This isbecause we do not have the manpower to be there picking up samples of thecoming 60,000 units they have to produce for Caltrans project in four months.Franklyn Steel will be allowed to send the samples to the lab. The lab willcommunicate you the dates of testing but you will not be required to be therewhen the testing is performed. You are required to perform random visits toFranklyn Steel Lab. You will assign a lot number to all the production ofhoops of one week. Franklyn will keep a book, showing their weeklyproduction, their own lot number and the number of bars selected and sent tothe lab for testing. (Three out of every 150 hoops, per Caltrans Spec.) Thetesting lab will fax to you the test results, if you are satisfied and thetest results are okay, you will give to lot number and tag the hoop, andwrite in Franklyn book the lot number. If you have any questions, pleasedirect them to Mr. Charles Williams or to me.
H. Morales.
Cc: C. Williams(emphasis added)
(Morales continued)
9
hoops were used in the footings and casings in the base of
freeway structures that support a bridge.
XIII
Franklyn Steel explained to appellant that they needed to
have the inspections done without delay because they were
supplying the material to a contractor who would be penalized up
to 20,000.00 dollars each day that they were behind in the
completion of the highway. This was an extremely large, new,
and unfamiliar project, and appellant had been experiencing a
manpower shortage.
Appellant called Crozier in Sacramento and explained to him
that the manufacturer is “ready to go and we’re not able to
inspect.” Appellant suggested sending some additional
inspectors from the Sacramento office, or possibly hiring a
consultant. Crozier suggested that appellant “kick around” some
ideas, and wait until Ellis returned from another job to work
out the problem with him. Ellis was familiar with the
fabrication process.
The draft memorandum was appellant’s effort at “kicking
around” an idea. It was never implemented, and was only a
draft.
XIV
Appellant met with Ellis and Franklyn Steel in
(Morales continued)
10
November 1995, and the problem was resolved. Ellis, called on
behalf of respondent, testified that appellant did not impose
the draft memorandum. In fact, Ellis was never given the
memorandum. During the November meeting, appellant discussed
Franklyn Steel’s concerns and deferred to Ellis’ expertise.
XV
Appellant’s testimony that the memorandum was only a draft,
and that the proposals in the memorandum were never implemented,
is credited. There is simply no wrongdoing in preparing a draft
and “kicking around” an idea. The evidence fails to support
cause for discipline.
Elysian Viaduct Welds
XVI
Appellant admitted that 90 percent of the welds of column
casings that had been approved by an inspector under his
supervision (Councilman) at the Elysian Viaduct were rejected.
Elysian Viaduct is a project that had been going on for
several years following the Northridge Earthquake. According to
the testimony of Inspector William Stokoe (Stokoe) of the Valley
Industrial x-ray and Inspection Service, it will currently cost
in the “hundreds of thousands of dollars” to fix the weldings.
Stokoe is a certified welding inspector hired by Caltrans to
evaluate the current condition of the Elysian Viaduct weldings.
(Morales continued)
11
Appellant testified that he had limited welding experience
and had explained this to Crozier upon hiring. According to
appellant, Crozier told him that appellant can rely upon the
expertise of his inspectors.
Appellant admitted that the improper welds were visibly
apparent. He testified that he conducted no random checks of
Councilman’s inspections, and trusted that Councilman was doing
his job. The project was approximately six miles from the METS
office. Appellant testified that it was not until well over a
year after Councilman was first assigned the project,
September 29, 1996, that another inspector, Suydan, covering
Councilman while on vacation, discovered “the most horrible
welds in his career.” Suydan immediately notified appellant.
Appellant immediately contacted his supervisor, Chief of
Structural Materials, Philip Stolarski (Stolarski). Appellant
inspected the project for the very first time after Suydan
notified him.
XVII
According to appellant, Caltrans Structures Representative,
Ted Hon (Hon) was responsible for the entire project. The
project could not be approved without Hon’s authorization.
If there was any problem with the welding, Hon was to contact
appellant. Appellant testified that he received no calls of
(Morales continued)
12
complaints regarding welding on the project. He testified that
he had seen Councilman in the office often, spoke with him about
the project, and was never informed of any difficulty. He
assumed everything was going well and had approved Councilman’s
requests for overtime, and even a promotion.
XVIII
Hon testified that he too was not notified of any problem
at the site. He testified that he relied upon his own
inspectors to assure that Councilman was doing his job.6
However, the responsibility for welding inspections fell under
METS, which was supervised by appellant and delegated to
Councilman. Although Hon approved the project, the inspectors
under his direction rely upon METS to do the appropriate welding
inspections. Hon admitted that the improper welds were visibly
apparent, however.
Hon testified that his inspectors told him that they spoke
with Councilman because they rarely saw him at the site.
6 Hon had 11 inspectors under his supervision.
(Morales continued)
13
According to Hon, Councilman explained that he would come after
hours because he did not want to disturb the work.
Appellant admitted that he knew that it was his
responsibility to assure that welding was inspected on the
project, and that the structures Representative, Hon, “relies on
the specialist [METS].”
XIX
Councilman was rejected on probation from the position of
Associate Steel Inspector for his failure to inspect the Elysian
Viaduct Project. He continues to work for Caltrans as an
Assistant Steel Inspector, the position he held when assigned
the project. Neither Hon, nor any of his inspectors, was
disciplined.
XX
Appellant testified that he had been experiencing a serious
shortage of inspectors, with a substantially increased workload,
following the Northridge Earthquake. He had informed his
supervisor on numerous occasions of this shortage. Appellant
testified that he spent a good share of his day on the phone and
“putting out fires.” He testified that he was told to limit his
own field inspections and that he should “manage” the office.
He testified that on occasion he would go to worksites with his
inspectors to introduce them to a new project. He had performed
(Morales continued)
14
no random checks of the work of those inspectors, however.
XXI
Appellant’s failure to conduct random checks of
Councilman’s work cannot be excused. Clearly appellant knew of
the significant impact spot checks can have on the performance
by contractors. There is no reason he should neglect this
essential function while performing his duty as a supervisor.
Nor is his responsibility to assure that inspections are
conducted, diminished by the failure of others. Appellant
admitted that it is he, not Hon, who is responsible to assure
the welding is inspected.
Failure to monitor seismic retrofitting on two projects
XXII
The only evidence respondent presented on this allegation
was Ellis’ brief testimony that on October 25, 1996, he went to
view two projects, the 7th Street overcrossing, and the Santa
Monica Viaduct. He testified that the jobs were initially to be
inspected by Councilman and Hiles, and that appellant was their
supervisor.
According to Ellis, he saw materials on the 7th Street
overcrossing project that needed repairs, problems with
brackets, undercuttings with the torch, and that the weldings
were not in conformance.
(Morales continued)
16
Caltrans less than six months when Los Angeles was stricken with
the Northridge Earthquake. His laboratory was short handed and
clearly overwhelmed. In further mitigation, appellant misplaced
his trust in an employee whom his supervisor indicated he could
rely on for his inspection skills.
Appellant critically failed as a supervisor, nonetheless,
his failure is not wholly independent. There was a “checks and
balances” system that should have been in full force as well.
Had Hon’s inspectors reported Councilman’s visible failure, had
Hon not relied solely upon his inspectors’ representations, the
matter could have been averted. Certainly, there is some shared
culpability.
The factors to consider in determining an appropriate
penalty are the harm to the public service, the circumstances
surrounding the misconduct, and the likelihood of recurrence.
Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 208.
While the harm is obvious, and appellant clearly indicated
an inability to supervise, there are significant mitigating
factors.8 Under the circumstances, the appropriate penalty is
not dismissal but demotion from the position of Senior Materials
and Research Engineer to the position of Associate Materials and
Research Engineer effective July 22, 1997.
8 Additionally, respondent failed to establish as cause for discipline theinspection at Rockwin, the preparation of a draft memorandum, or themonitoring of the two retrofitting projects.
(Morales continued)
17
Skelly Issue
Appellant argued that his due process rights were violated
since he did not receive photos or a report on the Elysian
Viaduct project upon service of the notice of adverse action.
The California Supreme Court case of Skelly v. State
Personnel Board (1973) 15 Cal.3d 914 (Skelly) set forth certain
procedures that a public employer must follow to satisfy an
employee’s procedural due process rights:
At a minimum, these pre-removal safeguards mustinclude notice of the proposed action, the reasonstherefrom, a copy of the charges and materials uponwhich the action was based...(emphasis added).
To establish a Skelly violation, appellant must provide
evidence of who made the decision to terminate appellant and
what evidence the decision relied upon. Gary Sharp-Franke
Johnson (1995) SPB Dec. No. 95-24, 7. Stolarski testified that
James E. Roberts (Roberts), Director Engineering Services
Center, approved appellant’s adverse action and was responsible
for “signing off.” Stolarski testified that he showed the
report and photos to Roberts. There was no evidence however,
that Roberts relied upon those documents to terminate appellant.
Accordingly, appellant did not establish a Skelly violation.
* * * * *
(Morales continued)
18
WHEREFORE IT IS DETERMINED that the dismissal taken by
respondent against Hernando Morales effective July 22, 1997, is
hereby modified to a demotion from the position of Senior
Materials and Research Engineer to the position of Associate
Materials and Research Engineer effective July 22, 1997. Said
matter is hereby referred to the Chief Administrative Law Judge
and shall be set for hearing upon written request of either
party in the event the parties are unable to agree as to the
salary, benefits, and interest, if any, due appellant under the
provisions of Government Code section 19584.
* * * * *
I hereby certify that the foregoing constitutes my Proposed
Decision in the above-entitled matter and I recommend its
adoption by the State Personnel Board as its decision in the
case.
DATED: January 12, 1997.
Susan G. KleinmanAdministrative Law JudgeState Personnel Board